CRS Annotated Constitution

Clause 2.
No person shall be a Representative who shall not have
attained to the Age of twenty–five Years, and been seven
Years a Citizen of the United States, and who shall not,
when elected, be an inhabitant of the State in which he
shall be chosen.

A question much disputed but now seemingly settled is
whether a condition of eligibility must exist at the time
of the election or whether it is sufficient that
eligibility exist when the Member–elect presents himself
to take the oath of office. While the language of the
clause expressly makes residency in the State a condition
at the time of election, it now appears established in
congressional practice that the age and citizenship
qualifications need only be met when the Member– elect is
to be sworn.290 Thus, persons elected to
either the House of Representatives or the Senate before
attaining the required age or term of citizenship have
been admitted as soon as they became qualified.291

Congressional
Additions.—Writing in The Federalist with reference to the
election of Members of Congress, Hamilton firmly[p.111]stated that “[t]he qualifications of the
persons who may . . . be chosen . . . are defined and
fixed in the constitution; and are unalterable by the
legislature.”292 Until the Civil War, the issue
was not raised, the only actions taken by either House
conforming to the idea that the qualifications for
membership could not be enlarged by statute or
practice.293 But in the passions aroused by
the fratricidal conflict, Congress enacted a law requiring
its members to take an oath that they had never been
disloyal to the National Government.294 Several
persons were refused seats by both Houses because of
charges of disloyalty,295 and thereafter House
practice, and Senate practice as well, was
erratic.296 But in Powell v.
McCormack,297 it was conclusively
established that the qualifications listed in cl. 2 are
exclusive298 and that Congress could not
add to them by excluding Members–elect not meeting the
additional qualifications.299

Powell was excluded from the 90th Congress on grounds
that he had asserted an unwarranted privilege and immunity
from the process of a state court, that he had wrongfully
diverted House funds for his own uses, and that he had
made false reports on the expenditures of foreign
currency.300 The Court determination
that[p.112]he had been wrongfully
excluded proceeded in the main from the Court’s analysis
of historical developments, the Convention debates, and
textual considerations. This process led the Court to
conclude that Congress’ power under Article I, Sec. 5 to
judge the qualifications of its Members was limited to
ascertaining the presence or absence of the standing
qualifications prescribed in Article I, Sec. 2, cl. 2, and
perhaps in other express provisions of the
Constitution.301 The conclusion followed
because the English parliamentary practice and the
colonial legislative practice at the time of the drafting
of the Constitution, after some earlier deviations, had
settled into a policy that exclusion was a power
exercisable only when the Member–elect failed to meet a
standing qualifications,302 because in the
Constitutional Convention the Framers had defeated
provisions allowing Congress by statute either to create
property qualifications or to create additional
qualifications without limitation,303 and because
both Hamilton and Madison in the Federalist Papers and
Hamilton in the New York ratifying convention had strongly
urged that the Constitution prescribed exclusive
qualifications for Members of Congress.304

Further, the Court observed that the early practice of
Congress, with many of the Framers serving, was
consistently limited to the view that exclusion could be
exercised only with regard to a Member–elect failing to
meet a qualification expressly prescribed in the
Constitution. Not until the Civil War did contrary
precedents appear and later practice was mixed.305
Finally, even were the intent of the Framers less clear,
said the Court, it would still be compelled to interpret
the power to exclude narrowly. “A fundamental principle of
our representative democracy is, in Hamilton’s words,
‘that the people should choose whom they please to govern
them’ 2 Elliot’s Debates 257. As Madison pointed out at
the Convention, this principle is undermined as much by
limiting whom the people can select as by limiting the
franchise itself. In apparent agreement with this basic
philosophy, the Convention adopted his suggestion limiting
the power to expel. To allow essentially that same power
to be exercised under the guise of judging qualifications,
would be to ignore Madison’s warning, borne out in the
Wilkes case and some of Congress’ own post–Civil War
exclusion cases, against ‘vesting an improper and
dangerous power in the Legislature.’ 2 Farrand
249.”306 Thus, the Court appears to[p.113]say, to allow the House to exclude Powell
on this basis of qualifications of its own choosing would
impinge on the interests of his constituents in effective
participation in the electoral process, an interest which
could be protected by a narrow interpretation of
Congressional power.307

The result in the Powell case had been foreshadowed
earlier when the Court held that the exclusion of a
Member–elect by a state legislature because of objections
he had uttered to certain national policies constituted a
violation of the First Amendment and was void.308
In the course of that decision, the Court denied state
legislators the power to look behind the willingness of
any legislator to take the oath to support the
Constitution of the United States, prescribed by Article
VI, cl. 3, to test his sincerity in taking it.309
The unanimous Court noted the views of Madison and
Hamilton on the exclusivity of the qualifications set out
in the Constitution and alluded to Madison’s view that the
unfettered discretion of the legislative branch to exclude
members could be abused in behalf of political, religious
or other orthodoxies.310 The First Amendment holding
and the holding with regard to testing the sincerity with
which the oath of office is taken is no doubt as
applicable to the United States Congress as to state
legislatures.

296
In 1870, the House excluded a Member–elect who had
been re– elected after resigning earlier in the same
Congress when expulsion proceedings were instituted
against him for selling appointments to the Military
Academy. Id., Sec. 464. A Member–elect was excluded in
1899 because of his practice of polygamy, id., 474–480,
but the Senate refused, after adopting a rule requiring
a two–thirds vote, to exclude a Member–elect on those
grounds. Id., §§ 481–483. The House twice excluded a
socialist Member–elect in the wake of World War I on
allegations of disloyalty. 6 C. Cannon’s Precedents of
the House of Representatives (Washington: 1935), §§
56–58. See also S. Rept. No. 1010, 77th Congress 2d
sess. (1942), and R. Hupman, Senate Election, Expulsion
and Censure Cases From 1789 to 1960, S. Doc. No. 71,
87th Congress, 2d sess. (1962), 140 (dealing with the
effort to exclude Senator Langer of North
Dakota).

297395 U.S. 486 (1969). The Court
divided eight to one, Justice Stewart dissenting on the
ground the case was moot.

Supplement: [P. 111,
add to n.297:]

Powell’s continuing validity was affirmed in U.S. Term Limits, Inc. v. Thornton,
514 U.S. 779 (1995)
, both by the Court in its holding that the qualifications set out in the Constitution are exclusive and may not be added to by either Congress or the States, id. at 787–98, and by the dissent, which would hold that Congress, for different reasons, could not add to qualifications, although the States could. Id. at 875–76.

307
The protection of the voters’ interest in being
represented by the person of their choice is thus
analogized to their constitutionally secured right to
cast a ballot and have it counted in general elections,
Ex parte Yarbrough,
110 U.S. 651 (1884), and in primary
elections, United States v. Classic,
313 U.S. 299 (1941), to cast a
ballot undiluted in strength because of unequally
populated districts, Wesberry v. Sanders.
376
U.S. 1 (1964), and to cast a vote
for candidates of their choice unfettered by onerous
restrictions on candidate qualification for the ballot.
Williams v. Rhodes,
393 U.S. 23 (1968).